AIR POLLUTION:

Appeals court hands EPA big victory on smelter curbs

Jeremy P. Jacobs, E&E reporter

Greenwire: Tuesday, May 28, 2013

Federal judges today rejected challenges from both industry and environmental groups to U.S. EPA's air standards for lead smelters.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously upheld EPA's January 2012 National Emission Standards for Hazardous Air Pollutants for secondary lead smelting.

There are 15 lead-smelting facilities across the country that primarily melt scrap material like batteries and recycle elemental lead and lead compounds. The process facilitates emissions of the potent neurotoxin, as well as other hazardous pollutants like cadmium and arsenic.

The standards were quickly challenged by the Association of Battery Recyclers as being too stringent, erroneously regulating elemental lead instead of lead compounds and inappropriately requiring continuous monitoring.

Public health advocates also filed a lawsuit challenging EPA's methodology and its decision not to set a new maximum achievable control technology (MACT) "floor," a stringency requirement based on reductions already achieved by the best-performing facilities.

D.C. Circuit judges rebuffed all of the charges point by point, granting EPA a significant victory.

The panel had indicated it was skeptical of both sides' arguments in last month's arguments (Greenwire, April 12). The sentiment carried the day in today's opinion.

On industry's elemental lead claim, Judge David Tatel, a President Clinton appointee, and Senior Judges Laurence Silberman and David Sentelle, both appointed by President Reagan, ruled that the testing method was also used by EPA in its 1995 standards. Consequently, the industry challenge was time-barred.

In a joint opinion for the court, they also took issue with industry's argument that the standards violated the law by affecting the agency's separate National Ambient Air Quality Standard, or NAAQS.

"The Rule in no way alters the NAAQS itself," the judges wrote. "It does not change the NAAQS level, impose an earlier NAAQS attainment date, or modify state implementation plans."

They also held that the industry group lacked standing to challenge part of the rules because it had failed to show how EPA's methodology for estimating fugitive emissions injured it.

And on continuous monitoring, the panel flatly said that any claim that the "requirement is arbitrary and capricious is premature."

Relying on precedence, the court also shot down arguments from public health groups such as the Sierra Club, California Communities Against Toxics and the Natural Resources Defense Council.

The judges rebuffed the advocates' claims that EPA inappropriately considered cost when setting the standard and, most importantly, ruled that EPA was not required to re-evaluate the MACT floor.

They pointed to a 2008 D.C. Circuit case, NRDC v. EPA, on EPA's air standards for synthetic organic chemicals. The court held in that case that EPA was not required to revise the MACT floor.

While acknowledging that the advocates' claims in this case is "far better developed than the identical claim" in the 2008 case, it is "barred by that decision."

Lastly, the panel rejected one smelter's involvement in the case. RSR Corp., which has already installed the best available technology, wet electrostatic precipitators, had argued that EPA should be requiring the same technologies at other facilities.

As they indicated at arguments, the judges quickly dismissed RSR for lacking standing. It wasn't injured by the standards, the judges reasoned, but rather wanted to impose greater regulations on other facilities.

The panel held that both the environmentalists and RSR failed to adequately highlight EPA shortcomings when drafting the new standards.

"Finally," the judges wrote, "environmental petitioners have failed to show that EPA acted arbitrarily and capriciously when it decided not to impose more stringent emissions standards based on certain technological developments -- namely, high efficiency particulate air ('HEPA') filters and wet electrostatic precipitators."